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Friday, June 09, 2023

Some Weaknesses in Criminal Accountability for Trump

I'll have more to say about the latest indictment of Donald Trump, but for now I want to point out some problems with using criminal law to hold Trump accountable at this point.

First, the pending criminal cases may increase the probability that Trump will be elected in 2024. His election would halt any criminal sanctions against him during his term in office and (perhaps) permanently. A conviction in 2024 followed by Trump's election would be a quintessential Pyrrhic victory.

Second, criminal cases are subject to delaying tactics. Will any trial of Trump happen next year? I'm not sure. Will any criminal conviction be final by November 2024? Unlikely.

Third, criminal cases are subject to pardons. The likelihood that Trump will get at least one pardon is pretty high. Any future Republican President will be under enormous pressure to pardon Trump. This is less likely in New York (if he is convicted there), but more likely in Georgia (if he is prosecuted there). Granted, you can say that a conviction followed by a pardon does vindicate the rule of law, but this is probably not what the prosecutors pursuing Trump have in mind.

Note that these objections do not apply to Section Three of the Fourteenth Amendment. No executive pardon can be given for a Section Three disqualification. The proceedings cannot be delayed because a decision must be held before elections are held. And Trump would either be found eligible or not by the Supreme Court. Just saying.


Posted by Gerard Magliocca on June 9, 2023 at 09:34 AM | Permalink


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